By Dr. Gretchen Green, Guest WriterThe risk of being sued is the proverbial elephant in the room during every clinical encounter with patients. Even though most of my fellow radiologists fear a lawsuit with potential personal, professional, and financial consequences, 2022 data indicates the majority of physicians will not actually be sued during their careers.
I was not one of the lucky ones, however. Just a few years into my clinical career as a radiologist, I was sued. After several years, the case was resolved. Not only did I survive the experience, I’ve thrived as a physician and expert witness, and I've become a resource for other physicians looking to develop medicolegal consulting skills with my Expert Witness Startup School.
I’ve previously written about how becoming an expert witness made me a better physician and about the financial benefits of putting your clinical skills to work in a new way. The good news is that the majority of physicians sued will not face a settlement against them, and even fewer cases will actually go to trial—on average, it's about 1-3 per 100 cases filed. That means there is a lot physicians can do to improve their chances of a positive outcome if they are sued—for their own health and for the good of the medical profession.
Remember: The Case Is Not About You
Plaintiffs file lawsuits for lots of different reasons, mostly financial. The most often cited reason patients sue is that a medical error is suspected; and the legal system’s remedy for the ills of errors is money. Plaintiffs harmed by medical errors may lose wages temporarily or permanently if they can't work. They may incur costs of treatment especially if they're uninsured. Finally, they may be awarded money for pain and suffering.
Many plaintiffs and their families also want to avoid seeing others face the same alleged fate. They want to see a silver lining in their experience, and a sense of service may lessen their own suffering (and possibly assuage guilt over receiving a financial settlement or winning a verdict).
Even though you should avoid taking the case personally, take a personal interest in it. The only action you can control is your own, so adopt an attitude of accountability in how you respond to your case. Asking yourself, “How can I respond here?” and “What is within my control?” can remind you that you are doing everything possible to be proactive, not defensive. Acting from a position of strength will yield better results than coming from a fear-based mindset. Your actions can include engaging (not avoiding) involvement in your case, doing appropriate research, and keeping an open mind as the case evolves.
More information here:
Do Not Talk About the Case with Others
Talk only with your defense attorney. Be open and honest in your conversations. Keep communication primarily to the telephone and in-person meetings. Minimize any emails when possible.
Your defense attorney is truly there to serve as your advocate. Return their phone calls as soon as possible. Be punctual for appointments. Dress professionally whether meeting with your attorney or going to deposition or trial.
Some conversations with some people may be protected from discovery during the legal process—perhaps including your spouse, a therapist, psychiatrist, or other medical professional—but ask your defense attorney for guidance.
It can feel very isolating to be sued. But medical malpractice insurance is the norm for physicians, not the exception, because lawsuits are a relatively common occurrence. Some articles quote a 50/50 chance of being sued over the course of a career, but that is not statistically true for all physicians during all phases of their careers. The actual risk is lower, with early-career physicians and women statistically sued less frequently overall. Risk typically rises with time and with more patient encounters throughout a career.
Keep a Journal
Document the facts of the case. This is not the place for your innermost feelings; this is a memory aid you will consult throughout litigation: i.e. when you were first contacted and by whom; dates and times of meetings; and other events like depositions, references, and other supporting documents, etc. This journal may also include details regarding medical care—either from your recollection or information you’ve gained from reviewing medical records.
Discuss what you document with your attorney since recording what you have discussed together may make this document privileged under the attorney-client relationship. But keeping your story straight is important especially when you may be provided later with different opinions and information and when cases often last months to years.
Research in the Right Way
Expert witnesses are bound by state-specific laws that govern what can be considered evidence in court. Physicians rely on skills, training, and expertise to make decisions about patient care. That includes references like medical literature, specialty or other professional society publications like consensus guidelines, white papers, etc.
It’s good practice to stay up to date with information in your clinical specialty, both via CME and professional resources. You should have the ability to support your opinion of the medical care provided or to explain why clinical judgment prompted actions not recommended in the literature. This is one reason expert witnesses can be such a valuable resource to their practices and can also improve patient care—because expert witnesses are legally required to support their opinions with research and/or provide examples of skills, training, and expertise. Research applicable resources but do NOT access the patient’s medical record independently.
Any keystroke can be tracked in an audit trail and potentially can be used in deposition or trial. Remember that only literature published at or before the time of care is applicable since medical care evolves over time and today’s knowledge may have changed in the months or years since an alleged malpractice event occurred.
Your attorney will provide you with any needed medical records. If you need additional information or know that other materials may help evaluate the case, let your attorney know so they can request them. You can be a valuable resource to your attorney when you put your knowledge to work to get the best information to inform your case.
More information here:
How to Survive a Medical Malpractice Lawsuit
Do Not Throw Yourself Under the Bus
Juries are designed to be made up of our peers in society, and pretty much everyone on a jury will have needed medical care at some point. Although lawyers may try to exclude jurors with very specific experience or strong feelings about particular issues in a case, the jury will likely have a varied perspective, and most will give physicians the benefit of the doubt because they recognize the value we provide in the world by helping keep everyone healthy. Even though most medical malpractice cases do not go to trial, physician defendants win most cases at trial.
However, physicians can self-sabotage by appearing arrogant or uncaring, either at deposition or trial. If there are bad facts in a case, discuss them openly and honestly with your attorney. Decide how to frame them in the context of the information available at the time of care. Opinions vary on the usefulness of apologies in medicine. If an error or bad outcome was recognized at the time it occurred, review any documentation in the medical record that may have detailed how it was discussed with the patient or friends and family at that time.
Do Not Throw Colleagues/Co-Defendants Under the Bus
Even worse than a physician who comes across as arrogant or unfeeling (even if it comes from a reaction to stress or fear) is one who finger-points at other clinicians. Occasionally, disagreements may be documented in the medical record, as when a primary care physician acknowledges a consultant’s input but decides not to pursue every recommendation. It is critical to keep documentation objective, however, and discuss the thought process behind decision-making. If this wasn’t done at the time of care, give it some serious thought and formulate your arguments for why something was (or wasn’t) done at the time.
Lack of follow-up on inpatient findings after discharge is a common theme in lawsuits, so documenting specific details of communication can be helpful (time/date, method of communication, person contacted). If not documented contemporaneously, having specific knowledge of your electronic medical record system can help you articulate the process by which information can be accessed throughout patient care.
Just like expert witnesses must stay within their own area of expertise, defendants should be careful not to have opinions about why another defendant (or non-defendant clinician) made a clinical decision. Let them answer directly through the legal process. Avoid making hypotheses about others that may result in their being named as co-defendants later. Discuss these thoughts with your attorney but not in deposition or trial, where you are only likely to damage your own reputation and credibility.
No Monday Morning Quarterbacking Your or Others’ Actions
Radiologists have a saying: “The answer is on the prior images.” No one has a “retrospectoscope” to use the future to see what should have happened in the past. Cancer is more easily seen in retrospect after you know where it later developed. This is why it is important for expert witnesses to review cases from earliest to latest dates—i.e. start with the prior exams or records and read forward, not backward.
Physicians don’t practice in hindsight, so don’t approach your legal case from the future. Consider the facts and information available at that time. Use contemporaneous literature when strengthening your legal position. If older consensus guidelines are needed but have been replaced by newer revised versions, you can often obtain them by contacting the society or organization that published them and asking for the sunsetted version available at and before the time of the alleged incident.
Accept that bad outcomes can occur regardless of best efforts. What can be learned from the situation?
More information here:
10 Things You Want to Know About Medical Malpractice
Do Not Let the Case Take Over Your Life
Manage your mind when working on your own case. Schedule a defined time on your calendar to research articles, read legal documents, or talk with your attorney.
If it isn’t clear what should have been done in a case, articulate why. Consider the literature (or lack thereof). Did you lack information you could have had at the time? Why did the typical course of action not apply in this case?
A powerful question to ask yourself is, “Why would I NOT do that in this case?” This perspective favors action as the default best option—like the old adage, “Don’t just stand there, do something!” But sometimes watchful waiting, observation, testing and retesting, etc. are the better options—just be able to articulate why that was appropriate in a given case.
Do Not Run for the Hills
Your defense attorney will typically work hard to defend you. Many defense attorneys are paid by insurance companies for the time spent working on a case, and as a general trend, defense attorneys may be paid less than their plaintiff attorney counterparts who may earn money based on a percentage of financial settlements or verdicts. Most defense attorneys tell me they feel strongly about supporting physicians because they hate to see good physicians suffer negative consequences when they’ve done nothing wrong. Many attorneys have told me how grateful they are for physicians who take care of themselves and their families and friends.
When an attorney knows you are taking your case seriously and are an active advocate for yourself, they will be positively motivated to help you through this process.
Do Not Make Financial Moves
Moving money or other assets after you learn a case is filed (or possibly if you suspect one may be filed) can be a red flag in a legal case and can damage your credibility. In rare cases, a judge may order you to reverse financial changes made out of the fear your assets may be seized in a judgment against you.
It may be prudent to take proactive moves to protect assets before and after a case, but to do so in the middle of a case is generally not a good idea.
How to Make a Bad Situation Do Good
As impossible as it may seem during a malpractice case, it is possible to make lemonade out of lemons. What can physicians do to survive and thrive in a medical malpractice suit?
Remember, it’s not about you. Lawsuits focus on the care provided and whether it measures up to what someone with similar training, skills, and expertise would do in a similar situation.
I had no idea expert witnesses even existed before I was sued. My attorney retained one who supported my actions, and it was a small comfort to know I wasn’t alone in my case. Even though I had no personal interaction with her, knowing a fellow professional supported my interpretation and actions helped me feel less isolated, as did the supporting literature I provided to my attorney as part of my research on the case.
My defense attorney was an amazing source of support and perspective. I was shocked, however, when he recommended I serve as an expert witness after my case concluded. At that point, I wanted nothing to do with the legal system ever again.
Then a few years later, I was contacted out of the blue by a law firm to review a case as an expert witness. I said yes because I knew firsthand how valuable an expert witness is to the legal system and because I knew I had developed the skills to do a good job. Now, after almost a decade, I’ve served as an expert in over 200 medical malpractice cases and taught hundreds of clinicians how to launch and build their own expert witness practices.
Medical innovation has progressed by leaps and bounds over the 20th century, and public trust in physicians has been hard-won. It is critical that physicians serve as expert witnesses—just like the public serves jury duty—to provide objective reviews of medical care.
Whether you are sued or serve as an expert witness, remember that patients and families ultimately have similar needs. They want to know that everything possible was done, that no alternative was known to have been better, and that there is something to be learned from the experience (even IF nothing was done wrong).
Physicians can also benefit from being proactive prior to being sued by having an awareness of the legal process. We can handle the legal process in a professional manner that also helps us build strength and resilience. And ultimately we can continue to serve as leaders and advocates for optimal patient care, whether in our own defense or by serving as expert witnesses.
Interested in learning more about becoming an expert witness? Sign up for Dr. Gretchen Green's Expert Witness Startup School!
Have you ever been sued for malpractice? What was your experience like? What do you wish you did differently?
Thanks to WCI for the opportunity to write this post and for your support of Expert Witness Startup School! I welcome questions from readers.
Dr Green
Thak you for your thoughts in your excellent article.
I too enjoyed reviewing malpractice cases while I was practicing. As I retired more than 3 years ago, it doesn’t appear that I can continue as a reviewer in Virginia because it is necessary to have been practicing at the time of the alleged breach of the standard of care. Is this the case in all states?
Thanks
Hi Abbott, thanks for your comment. Most states require that you are in active clinical practice (definition of time varies, usually at least 1 day/week) to be retained as an expert witness. After retirement you typically have an 18-24 month window to wrap up existing cases (again, timing varies by state). It’s also true that some states have requirements about being in practice at the time an alleged incident occurs. Some law firms will still have preliminary reviews performed by physicians who are retired, so you might reach out to your contacts and see if that is a way to stay involved.
Thank you for your positive article. People need to write more about medical malpractice. While it is true that most physicians never get sued this can be skewed by location and specialty choice. Working in MN most Ob/Gyns have never been sued here but training in Chicago, most of us were named in lawsuits from residency. Our experience as women early in our career being named is against the norm but can affect the trajectory of one’s career.
Most docs do get sued. The average is my specialty, which is about average risk, is about once a career.
Thanks, Margaret. You bring up a good point that not all defendant demographics are the same – although it’s true that over an entire career (typically 30+ years), statistically >50% of physicians will be sued, the risk is actually slightly lower for female physicians, and increases over time (i.e. younger docs are not sued as often).
Some physicians (a minority) are sued more than once which can skew the data also.
Ilene Brenner’s book “How to Survive a Medical Malpractice Lawsuit” is an excellent resource.
Best piece of advice I got for the deposition was to address only the actual question. Question: “Are you aware of the current standard of care for [medical condition] doctor?” Answer: “Yes.”
Good point, GK. It’s important as an expert to listen carefully and answer what is asked. It’s a form of active listening we already know how to do when talking with patients and families, but applied a little differently to expert witness work. The principle “less is more” is usually helpful in deposition and trial testimony, but with caution towards appearing to stonewall the attorney. This is the art of testifying that is definitely a teachable skill.
Thanks for writing this post. I found it very interesting to read.
Have you ever been hired as an expert witness by one side and then found out, while researching the case, that you supported the other side’s position? What would/did you do?
For the record, I’m not a doctor, nor have I ever sued anyone.
If an attorney finds that they don’t have a case, they usually don’t sue. Part of the witness’s job is to tell them when they don’t have a case. They might try finding another one, but it isn’t about hiring a witness to lie for you.
An aged gentleman once had me in a party: “My doctor son works as an expert witness. They fly him business class and find him the best hotel in town. Only thing he needs to do is to say whatever the attorney asks him to say…”. I felt sorry for his pride, and hoped it was not true.
Having done a lot of travel for work, I don’t see “flying business class and staying in nice hotels” as some sort of desired thing. I certainly wouldn’t work for that. My impression is that most expert witnesses don’t just “say whatever the attorney asks for” but I’m sure a few do.
Harry, it’s interesting how perspectives differ between physicians and conventional “businesspeople.” Businesses see business class travel and good hotels as an investment in their resources – time is money and when you are paying someone for their time and need them to have total mental focus, travel conditions matter. Fatigue from travel is ever increasing with declining conditions and seat pitch on planes, to the point where you pretty much can’t open a laptop in front of you in a standard coach seat. You can expect to spend travel time preparing for testimony and reviewing materials. Getting a hotel close to the courthouse is critical in order to be available when needed in a trial, and minimizing additional travel time is money well spent. These are important to do your best job in testifying, but are NOT indicators of being a “hired gun.”
Thanks, Donna! Agree w WCI this is an underappreciated role for experts. I often review cases and find that there was no breach of the standard of care. In that case, the attorney may not proceed with the case, but a potential physician defendant may never even know that they might have been sued. This “behind the scenes” situation is fairly common. The important part is to review cases impartially – by not choosing one side over the other – and form your independent opinion.
I am a retired lawyer, and agree with WCI and Dr. Green. A good lawyer will want to know your view on anything within your expertise. In addition to trying to decide if their client “has a case,” a good lawyer wants to find out potential weak areas, test their own views, test what they hear from other potential experts, and not waste time on a bad case or a bad theory. If your views don’t align with their theory, you have given them valuable information. The lawyer’s job is to be an advocate and find a winning theory (if there is one); your job as an expert is to be independent and candid.
I have fellowship training in Forensic Psychiatry and have dedicated about 1/3 of my professional time to this aspect of psychiatry…I have been sued (defended successfully) and have appeared as an expert in better than l000 cases over 40+ years.. I have also taught in a local law school for many years.
As an expert, the most important element is objectivity…you must be able to show that you considered varying options but chose this one or that one and be able to explain why…
As an expert, refrain from “doctor talk” … discuss the issues as if you were explaining them to your spouse or grandchild…medical jargon will be seen by a jurist as arrogant and will likely be a source of real or unconscious animosity towards you the expert or towards the position you are supporting.
Don’t hurry through reports…most attorneys will know you only through your reports…be complete, be thorough, be honest and offer varying viewpoints with a valid explanation as to why you chose one or the other…above all, be sure to review sufficient records and if appropriate to interview the subject thoroughly.
Don’t be shy…if you feel you need this medical record or another one, or if you feel you need a school record or an employment record to assure yourself of what the individual is alleging then ask the attorney to get those materials for you…often the material in a mental health/psychiatric case found in a medical or surgical record can turn the case significantly in one direction or another…obtain whatever records you may feel could be helpful and realize that often records written by non-physicians, e.g. nurses, nursing aides, etc can be very illuminating.
Don’t be a “homer.” There is no such thing as a perfect case and you lose credibility if you don’t acknowledge some issues that may have gone wrong even with good intentions…Also, accept cases both for the plaintiff AND defendant…if all your expert work is done on behalf of the defendant you lose credibility and frankly all we have to offer the legal system is our intellect, our training, but most importantly credibility and honesty as experts.
Above all, entering the arena is not for everyone and certainly not for the faint of heart…you must be able to assess information, make legitimate decisions and be willing to support them and be willing to work within a framework of the courts…i.e. being available to their schedule not expecting them to bend to yours.
Be willing to accept aggressive cross examination and don’t take it personally…do not allow yourself to be angry or snarky with an opposing attorney.
A brief story…one of my first experiences as an expert was a murder case in which one long term patient in a state psychiatric hospital (in those days long term meant he had been there for better than ten years) killed another inpatient…briefly stated they were having a sexual relationship and a quarrel began leading to one killing the other with a blow to the head… I determined that the assailant met the standards for not guilty by reason of insanity and such was the ultimate verdict.
On the way, however, I was grilled by the prosecutor who questioned my training, my experience and my motives for arriving at such a finding…. several weeks after the verdict I received a phone call from this very attorney who asked about my availability to treat his mentally ill brother… I, of course, expressed my shock that after attempting to humiliate me publicly for several days in a public courtroom he should want me to treat his family member…more than forty years ago and I still remember his response…”Come on doc…I know your background and your reputation, I want the best for my brother…” He paused and as I was speechless, he added, “You know, business is business, I respect you fully….”
Keep that in mind…if we enter the arena of the law we must understand the ethics and the rules of the law, not presume that they understand or play by our rules.
I have found this area of practice interesting, compelling and yes, it has also improved my clinical skills by keeping me open to certain aspects of care that I may not have considered…if you feel you would like, go for it, but proceed with caution, make sure you learn “the rules” and not presume that because you are a good clinician everything else will work out for you.
Thank you for a compelling letter and discussion.
Gary makes some great points about the art and science of expert witness work. It can all appear intimidating when you’re contemplating starting an expert witness business, but I guarantee it’s easier than learning the medicine that got you where you are now as a practicing clinician! This also underscores the value of learning from validated resources and a trusted mentor rather than from the hard way via trial and error. Thanks for the comments!
I have participated in about 500 cases over 40 years, primarily, but not exclusively, for the patient (plaintiff). Out of those i have testified in court about 80 times and have given over 350 depositions. I take no case that is not solidly meritorious and attorneys are quite grateful when I explain to them why their potential case should not be pursued. It is very expensive for attorneys to pursue a malpractice case and their recovery is often limited by statutory “caps” on damages., depending upon the state.
I disagree with the advice to only answer the question at deposition. Opposing attorneys ask very specific questions with hopes of very limited answers that they can “spin” at trial as effective “sound bites”. They try to limit you to Yes/No answers. I give full answers over their baseless objections and I hammer the facts repeatedly. In every case I testify in I am the primary expert, often the only expert. If it goes to trial, I will have my deposition transcript in my hands and will read the whole answer, which the other side generally does not want the jury to hear. Letting the attorney on the other side know that they will have a hard time with me on the witness stand is key to convincing them to make a settlement offer, generally the best outcome for both sides for a meritorious case. With the advent of corporate healthcare, long-term ramifications of settling a case are much less severe for a physician now than they were in the private practice era. In really sad cases, I have seen physicians refuse to settle, only to be hammered with jackpot judgements that they had to pay, in part, themselves.
I practice in Florida, which is a highly litigious state for personal injury. There doesn’t have to be harm for patients to sue and often personal injury attorneys will take a weak case just in hopes of a quick and easy settlement. The reality is that the malpractice defense attorneys wouldn’t make much of a living without all the personal injury attorneys ‘shaking the bushes’ and bringing work to them. So there is almost a corroborative relationship between them and they work together in their own ways, along with insurance companies that usually prefer a quick settlement. Keep in mind that going with the defense attorney your malpractice insurance company wants you to represent you may not be in your best professional interests.
New graduates from our residency program, over the years , have often complained that they got zero teaching on how to navigate a malpractice suit.
And in my experience , the plaintiff bar often set their sights on young , fresh -out- of residency doctors . They have less contacts. Few older physicians in the community will back them up. (they don’t want to get involved) and with less financial and community backing they often are represented by inexperienced and less effectual defense counsel.
So the advice of Dr Gretchen Green above should be inculcated into medical school and residency education.
But also I remember an older, close to retirement , very respected physician friend of mine was sued .The plaintiff lawyer was vicous in his description of my friends medical care. Then after the trial the plaintiff’s family came to him and asked to shake his hand, They said they still thought he was a great doctor , but”I’m sure you understand doc, we just couldn’t turn down the opportunity to make a lot of money!”
Thanks so much, Andrew, for emphasizing this blind spot in our education and training! The same could be said for financial literacy – such a key topic we often only get real-world exposure but would benefit from training and resources like WCI!
Lawsuits are indeed usually at least partially about money. Families also want to know if anything else could have been done, and that the clinicians involved are open to learning about the experience and not just circling the wagons. I’ve been on both sides – expert and defendant – and it’s a learning experience all around. Thanks for reading!
Andrew – I find that behavior of the plantiff’s family despicable – and I think I probably would have told them such when they tried to shake my hand, ESPECIALLY if I had won the case.
So you dragged me, my family, my confidence and my professional reputation through the much because you had the chace to “make a lot of money.” Pardon my french, but screw them – and I believe there’s a special place in hell for individuals like that.
As much as the advice here is to “not take it personally” – and certainly there is some truth to that – these people are publically questioning your intelligence, your training, your desire to do the right thing(s) for your patients. To not take it personally is to not be a human.
That’s the mindset that keeps docs lying awake at night for years worrying about money that isn’t even theirs. Not healthy. The more you tell yourself that you’re really just a defense witness for the insurance company and this is all about money and not you personally (despite what you can read on the documents and what is said in court) the happier you are likely to be and the better legal decisions you are likely to make.
Thank you, Dr. Green, for this insightful article. I shared it with my residents. I’m wondering if you will be interested to give a similar talk to our GME staff (faculty and residents from internal medicine, emergency medicine, and family medicine residencies) as part of our Grand Round activity. If interested, and we will be really appreciative if you are, please send me an email and we can discuss the details.
Warm regards,
Mohammed Elhassan
Associate Program Director, Saint Agnes Medical Center Internal Medicine Residency Program, Fresno, CA
Thanks so much for the offer! If you follow the WCI link to my course, you’ll find my contact info there. Best, Gretchen
I always thought that if I were sued I would take it very personally. However I had an experienced that at least opened my mind a bit to that perspective, as touched on by this article. I referred a close friend of mine to a doctor I knew well for care of his child. There was a significant medical mishap under the care of the on call doctor. This resulted in a catastrophic injury to my friend’s child, necessitating lifelong caregiving. My friend sued the on call doctor and my colleague. My colleague was really angry, it permanently damaged our relationship. My friend had sued him at the advice of his lawyer, it was not personal. He was facing a financial hardship of caregiving expenses, and the burden of knowing his child would require care even after he and his wife were gone. In the end the insurance settled, my colleague’s reputation was undamaged and he practiced successfully the rest of his career.
An unfortunate but useful example of how many different kinds of motivation can influence medical malpractice cases.
The overwhelming majority of cases are without merit, just scapegoating people for money. Even in defendant hellholes like Philadelphia, juries decide for the doctor in the vast majority of cases. The judges that allow these cases to drag on must be severely punished. Organized medicine has failed to defend clinical care. They are leftists, and support the lawyer profession against the interests of their members.
Dr. Green,
Can you please comment on the above comment:
“ Keep in mind that going with the defense attorney your malpractice insurance company wants you to represent you may not be in your best professional interests.”
I have heard of the malpractice insurance’s attorneys pushing the doc to settle against his/her will.
Thank you
I’m sure it goes both ways. Doc wants to settle to be done, insurance company says, “What the heck, this is totally defensible?” Or doc wants to take it to the mat but insurance company is like, “This could easily be lost for policy limits or we can settle for $250K. Let’s settle this baby, even if there is a 60% chance of winning.” I’m sure there is often disagreement. Some policies give the doc the final decision. If that’s important to you, make sure your policy says that. But keep in mind you might be making the wrong decision.
Dealing with this personally in a case currently.
I brought this up explicitly to my defense lawyer as a concern when we first started working together. I personally believe the case is without merit. After he reviewed the case and had an expert review the case, he feels there is no need to consider a settlement (i.e. the case is without merit).
Per our conversation, at least with my insurer he has not seen a case where the insurer/hospital forced a doc to take a settlement against that doc’s wishes. He has seen settlements that he thought were ill-advised because the doc wanted it to be over and move on, etc. which I guess I can understand.
He also brough up the idea that if a hospital gets a reputation for just paying out nusiance settlements – it makes that problem worse. More cases will be brought on the hope of a quick settlement and making something out of a case that wouldn’t turn out favorable for the plantiff at trial.
I also asked him once – of all the cases he’s worked over 20+ years in defense, what percentage of the cases HAD merit and were “actual malpractice?” His answer? 5%
If that doesn’t tell you that we badly need tort reform, I’m not sure what would.
Most malpractice isn’t sued and most suits aren’t malpractice. It’s been that way for a long time, at least my entire career. Maybe forever.
This is an utter failure of the lawyer profession. It is a worthless system, and is toxic. The aviation safety model has worked. Each disaster has 12 or more factors. Find them, list them, prevent them. The prevention of any one would usual prevent the entire disaster. Right now, most lawsuits have no merit, and patients continue to be injured by error. A cover up of these factors is induced by the legal system. Everything you say now can and will be used against you. It is imperative for clinical to survive. Thus the cover up against legal predators continues.
Some insurance policies have a “consent to settle” clause where the case cannot be settled unless you, the defendant, agree. There are pros and cons and I would discuss it with the attorney (typically assigned to you by the medical malpractice insurance company). I have had good experiences working with both plaintiff and defense attorneys, but as in all professional relationships, if you have concerns about that individual, speak with your med mal claims adjuster or other company representative to determine whether you want to request a change. It’s very difficult to change attorneys mid-case so carefully consider all the issues.
I retired on disability unfortunately about 11 years ago and for my encore career started an expert witness agency. It has been a fascinating journey helping physicians who want to be great expert witnesses find engagements and fascinating cases to consult upon and earn good side hustle income. It hasn’t afforded me as the medical director much income because I distribute most of the revenue to the expert but I continue to learn and grow as a professional. We purposefully do very little med mal and focus on big dollar self insured and insurance liability cases handling third party claims. I’m always looking for people nationwide. Feel free to reach out.
If you’d like to buy an ad here, contact cindy (at) whitecoatinvestor.com.
I am a recently retired cardiothoracic surgeon. While I am not interested in being a plaintiff witness, I would like to have an opportunity to review cases.
Thank you so much for such an informative and supportive article. Very timely. Sincerely appreciate your efforts and passion in a very unpopular space of medical practice.
I appreciate your kind comment. If this is “very timely” because you’ve found yourself in a lawsuit, I hope my story gives you hope and the knowledge that this is temporary. You can survive and even thrive because of the experience. It’s not easy, but I have seen firsthand how important it is to have a mentor and source of support, which is what I’m privileged to now serve as for physicians, especially as I have retired from clinical medicine and have found new purpose for my life.
Ob- if you have a case noted as bad outcome and your practicing hospital is indicating that there is no need to involve your Locums malpractice company just yet while hospital risk management is investigating and asking you to explain the case in details. As a locums do you go ahead and notify your locums risk management office or wait since you are being told not to discuss the case with other parties ?
Without giving specific legal advice, you could consider contacting your med mal insurance claims agent (or the locums contact) to pose a hypothetical – ask if your policy requires disclosure of any peer review cases, etc. It is usually better to be proactive than reactive. Yes, you risk “tipping them off” to something you’re no doubt hoping will go away, but if the committee takes action against you, it may be impossible to undo it after the fact. Given this is a locums assignment, if you have an interstate pact license, the effects could be wide-ranging on your license. I personally chose not to do locums because I also felt the insurance coverage was ridiculously low, given my prior high-risk specialty of breast imaging. Hopefully your coverage is adequate and with attention to physician contracts, physicians can push back against too-low malpractice insurance coverage limits. In the meantime, look out for your own professional best interests and advocate strongly for yourself.
You can always discuss anything with your own lawyer. That’s unlikely to hurt anything. But if both you and your hospital are sued, it’s probably best to work together on your defense most of the time, otherwise it becomes a circular firing squad.
Have you heard of Carfax? This program finds information about a specific car in the public record, owners, accidents, odometer, use as a cab, recalls. I propose Plaintifffax. Find out if your new patient is a lawyer, a judge, an insurance employee, a person with a history of suing anyone, stores, doctors, landlords, employers. As with information about a car, decide accordingly.